November 30, 2007

Cold Case

As
reported last
year, Keith Whittle got heated and sued an old friend, Theo Cummings, who
had prosecuted a heated body pad patent for him gratis, for doing a bad job of
it; namely, leaving out the heated part. Whittle also sued Proctor & Gamble,
where Cummings used to work, and Theo's wife, for no good reason that the
presiding judge could figure. Tuesday
the judge pitched the case under
Federal
Civil Procedure Rule 12(b)(6) for failing to state a claim upon which relief
can be granted, the "what are we talking about?" rule. The judge will allow
Whittle to refile a more cogent complaint. Cogency does not appear to be Keith
Whittle's long suit.

November 29, 2007

Time Warp

6,233,389,
owned by TiVo, claims a TV time warp: recording a program while playing back
another. Suing EchoStar for infringement, EchoStar pulled the reexamination
trigger. All that got was a bulletproof patent.

New Matter

Paul Lew and Jason Schiers
dreamed up a wheel hub with a clutch, for bicycles,
which allowed free wheeling when not pedaling, but instantly engaged when
pedaling. The torque
transfer was "through a multitude of ball bearings." Lew got
6,644,452 for it.
Prosecuting the continuation, he canceled his original claims and submitted a
substitute specification, essentially identical, except replacing "ball
bearings" with "curved members," and "pockets" with "slots," both new terms. The
examiner balked.

November 28, 2007

Closed Circuit Claim Construction

Elbex
Video sued Sensormatic Electronics for infringing closed-circuit TV patent
4,989,085. The district court granted summary judgment of non-infringement
based on claim construction. On appeal, the CAFC went 2-1 in not finding the
prosecution estoppel that the district court perceived.

For a prosecution statement to prevail over the plain language of the
claim, the statement must be clear and unmistakable such that the public
should be entitled to rely on any “definitive statements made during
prosecution.” Omega, 334 F.3d at 1324.

November 27, 2007

Coase, the Internet, and a Market for Ideas

The Internet is changing the economic costs and benefits of many activities in our society. The economics of innovation are changing too. The result could be the emergence, for the first time in history, of an efficient market for ideas.

November 26, 2007

Injunctions Since eBay

The
2006 Supreme Court ruling in
eBay v.
MercExchange was the last significant SCOTUS denouement on patent
injunctions since Continental Paper Bag in 1908. A balanced assessment, applying
"principles of equity" of the infringement in light of the infringed party
and the infringer was the theme of the eBay decision. Though the language of
the court was muddy, the presumed clarion call was that non-practicing patent
holders would be hard put to get an injunction; that being direct competitors
would be the best bet to stop infringement in its tracks. An exception proves
the rule, as a survey of 28 post-eBay district court dances by Andrew Beckerman-Rodau
of Suffolk University reveals.

November 23, 2007

Qualcomm Skirmishes Update

The
ITC dropped Nokia's complaint against Qualcomm, pending arbitration; warfare
between the two continues in court. In a long-running Broadcom battle, Broadcom
just settled for $19.6 million, after a winning a $39.3 million jury award for
willful infringement,
overturned by the trial judge because the CAFC set the willfulness standard
near the ceiling in
Seagate this past August. Broadcom and Qualcomm continue to duke it out,
with Broadcom so far generally getting the better punches in. Qualcomm is a
patent pusher as well as a sometime patent pinata.

Pop

Burst.com
has three employees. Last year it lost a half million dollars. It could afford
to, because in 2005, Microsoft paid Burst.com $60 million for license to its
streaming media patents. Apple fought, not entirely unsuccessfully, but just
settled for $10 million. Burst.com is now beavering for who to badger next.

November 20, 2007

The Big Charade

The
USPTO released last week its fiscal year 2007 "Performance and Accountability
Report", praising itself for "achieving another record-breaking year in
performance." The numbers: a record number of patents "examined" = 362,227;
quality compliance = 96.5% (what the hell is that?: dotting the 'i's and
crossing the 't's, a triumph of nitpick over substance); BPAI upholding
examiners 69% of the time (an intra-agency highly symbolic number), up from 51%
in 2005, indicating how much better the PTO has stacked the deck against
applicants; and grants
down to 51% from 72% in 2000, as if, nationwide, patent attorneys' heads turned
to mush as they suddenly spewed garbage patent applications left and right.
Yeah, right. All puppet performance, no accountability.

Taxing Patent Reform

Another bullet dodged
as the Patent Reform Act of 2007 crumbles to dust; three years' running of the
Senate failing to do something really stupid about patents; the House, being
ever slightly more craven to special interests, had no trouble wallowing to the
lowest common denominator of patent idiocy. Post-grant opposition and damages
apportionment were the Senate's statutory showstoppers. So, not this calendar year, it seems, but
expression of commitment for patent reform simmers in the Senate before the
110th Congress checks out. What's getting a real head of steam is scratching out tax patents.

November 19, 2007

The Examiners' Burden

In
March 2005, USPTO management
unilaterally
terminated the collective bargaining agreement it had reached with
POPA, the examiners' union. Thus
began a new round of negotiations, which, in a letter Monday to examiners, is
considered at a mid-point impasse.
As POPA put
it: "The agency has taken a number of positions that are very harsh towards
examiners."

November 17, 2007

Infringing Activation

Serial
patent infringer Microsoft, who bitches mightily about having to pay patent
"taxes," got nailed $115 million in damages, plus a $25 million kicker for doing
it when they should have known better, and attorneys fees, for willfully
infringing z4 patents that cover Microsoft's product activation feature, used in
both Office and Windows. Microsoft was denied JMOL, which it appealed.

November 16, 2007

Part Of A Winning Team

An
examiner at the USPTO commented about
Margaret J.A. Peterlin, Deputy Director,
"another Hill staffer that has been sent over here to manage the PTO. There has
been some griping by examiners and SPEs about her qualifications and her
abilities." Peterlin is a former lapdog for Illinois Republican Rep. Dennis
Hastert, an erstwhile wrestling coach.

The Hanging Tree

Patent malpractice accusations are becoming more frequent as the value of
patents has generally increased. With that, the costs associated with
malpractice are also going up. Back in 1985, IP attorneys were but a shade
over one-half percent of malpractice claims. The rate as of 1999 had breached
the 1% mark. With USPTO prosecution proceedings becoming positively squirrelly,
and thus more demanding upon prosecutors, a specter looms that the patent
malpractice problem may worsen.

November 15, 2007

Wiped

Kamil
Idris, Sudanese national, head of the
World Intellectual Property
Organization (WIPO) for a decade, is retiring early in the wake of protest that
he had been inventive with his biographical particulars.

Victory at Sea

The
USPTO announces success in increasing pendency: up to 32 months. Director Jon
Dudas, in a phone interview, crowed: "In the near term, we'll see pendency grow
for a few years." The Congressional Government Accountability Office credited
agency management with unrealistic production goals fostering massive
examiner turnover. Meanwhile, the patent grant percentage is down to 51% from 72% in 2000, as applicants clog the office with their crappy ideas.

Crying Time

In
facilely reasoned tones, Cisco general counsel
Mark Chandler pleads in the San Francisco Chronicle for indulgence to pass
sorry legislation gutting patent enforcement. Simple logic, and history, defy
the stance of those serial infringers who would denigrate patents and rig the
system to their advantage.

November 14, 2007

Smoking Obama

Barack
Obama, a former law professor, still a first-term senator, and now a reputedly charismatic but greenhorn
presidential candidate, supports patent extravagance and band-aids: gold-plated
patents, and a new post-grant opposition proceeding by the PTO. The more robust
idea of an overall better examination regime via turfing out the clowns now
running the show either hasn't occurred to him, or isn't splashy enough.

Another Friend

Microsoft
has inked a broad patent cross-licensing agreement with Kyocera Mita, Japanese
maker of printers, copiers, and Linux-based embedded devices. Since December
2003, when Microsoft finally figured out that licensing patents was a good idea,
it has entered into more than 200 patent cross-licenses, and been sued for
patent infringement at least twice that, doling out billions of dollars in
damages and settlements.

November 13, 2007

101 Crumble

The
September
Comiskey (mental processes) and
Nuijten
(signals) CAFC
§101
decisions rocked the patent world. In unctuous spirit of thrashing patentable
subject matter, the USPTO Patent Board of Appeals and Interferences (BPAI) has joined the
agency's crusade of wanton illegality, wreaking havoc with in its recent
decisions. One wag, through gritted teeth: "Judges Barret and MacDonald seem to
be the bad apples; almost always on the panel when the Board issues a real
stinker decision. How do you get the idea of incompetent legal analysis across
to the official to whom the Board reports -
James Toupin[,
patent office general counsel]? The blind leading the blind."

Impunity

The
patent police state known as the USA is enshrined in the Constitution:
sovereign immunity. The 11th amendment immunizes those sanctioned by the
State from infringement accountability. Example: the University of California is
an 800-pound patent gorilla that can't be touched, but gets all the bananas it wants.

Venturing?

The
Wall Street Journal today posted a
mixed message and a Milquetoast
blog entry on Intellectual
Ventures, itself an ambitious and ambivalent player in the patent game. What
Intellectual Ventures most clearly lacks is the ability to project that it
possesses a sound business model.

November 9, 2007

Opposition to Opposition

The
United States currently has a sufficient open-ended post-grant opposition
process in the form of inter partes re-examination. So, does the proposed
statutory reform for a different protocol make sense?
Dale
Carlson in the National Law Journal: "The recent experience of three Asian
countries that have implemented, and subsequently abolished, patent opposition
systems signals a resounding 'No.'"

November 8, 2007

Not Appealing

Ruthlessly incompetent USPTO management continues to flummox the patent
community with its illegal and outrageous rule-making. The latest episode is
revising appeal rules.
Public comments have been posted, none complimentary; worthwhile reading. But,
however compelling, you can't clue the
clueless. In other words, don't hold your breath that the patent agency won't
proceed apace in yet another rules-from-fools folly.

Bon Vonage

Vonage,
long beset by patent litigation, appears to be clawing its way out of a deep
hole: it settled with AT&T, the last company to hammer Vonage with its patents,
for $39 million. Vonage had previously put behind it, at considerable expense,
suits from Verizon ($120 million) and Sprint Nextel ($80 million).

November 7, 2007

Unincorporated

Zenon
Environmental sued US Filter for infringing water filter patents:
6,620,319;
6,245,239;
6,550,747. In district court, Zenon crapped out on claim construction,
leading to a non-infringement decision, as did US Filter on invalidating '319.
On appeal, '319 validity took center stage - a defective incorporation rendered
the family parent anticipatory, offing its offspring.

November 6, 2007

Grape Rape

Varieties of table grapes
may be patented. The U.S. Department of
Agriculture (USDA) is a cultivator of new varieties, releasing them on a trial
basis to growers, to evaluate growing potential and commercial viability. The
USDA also patents grapes.

The California Table Grape Commission (CTGC), established by the state
legislature in 1967, is funded by a 13¢ per box assessment levied on shippers of table grapes in the state. In the late 1990s, CTGC started licensing table grape patents
from the USDA, and enforcing licenses on state grape growers. From there the story peels.

Tick-Tock

The
clock runs low on the Senate shoveling the shyst numbered S. 1145. Heavy heels
dug in on both sides, a bridge between nowhere in sight. "Damages apportionment"
rightfully is the big stalemate. As in the past two years, statutory patent
deformation withers on the vine of irreconcilable contention.

November 5, 2007

Goliaths

High-tech Goliaths who routinely flaunt the law by abusing their market
power are consistently rebuked for regarding themselves as being "above the
law" - and justifiably so. The Patent Reform Act now up for vote in the U.S.
Senate is but the latest blatant example of how Goliaths are wielding their
power to smother innovation. Indeed, the Goliaths seek a major overhaul of
our patent system that would pave the way for them to roll over competitors
by misappropriating their intellectual property.

Cash Constellation

Orion
IP is filling its little galaxy with patent lawsuits and subsequent licensing
lucre, sallying forth to grab gobs from up to 100 companies, and that's just for
starters in its enforcement campaign. The two little numbers hooking the crowd:
5,367,627, claiming a computer-assisted sales method for associating parts
to products; while
5,615,342 claims generating a product sales pitch based on a questionnaire.

November 2, 2007

Illumination in Range

Mr.
Rolfes, an employee of Phillips, sent a letter to Iwasaki Electric, offering to
licensing
5,109,181, which claimed a particular halogen lamp. No reply; litigation
disco. On appeal, some light shed on claimed ranges and the doctrine of
equivalents.

November 1, 2007

Back from the Dead

Microtome
was granted
5,734,823, claiming encrypted storage. The patent was then acquired by IPDN,
who went bankrupt. Diego bought the patent, "as is," at the bankruptcy estate
sale. The appeals court was riveted: "The facts of this case read like a novel
in that they involve the resurrection of an inventor thought to be deceased."
Ultimately a tale of 35 U.S.C.
§ 285, granting attorneys fees for exceptional cases.

Sponsored by

"A court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. The analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." - SCOTUS in KSR, 2007 -

"Words ought to be a little wild, for they are the assault of thought on the unthinking." - John Maynard Keynes -

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